STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES ECKELS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6397

)

HARRIS CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on January 24, 1992, in Melbourne, Florida.

APPEARANCES

For Petitioner: James R. Eckels

4200 North Ocean Drive Suite A-1206

Singer Island, Florida 33404

For Respondent: W. Russell Hamilton, III, Esquire

Morgan, Lewis & Bockius

5300 Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2339

and

Anne Barrett-Davis Senior Legal Assistant Harris Corporation

1025 West NASA Boulevard Melbourne, Florida 32919

STATEMENT OF THE ISSUES

As stipulated by the parties, the issue to be resolved in this proceeding is whether the Respondent, Harris Corporation, violated Section 760.10, F.S., by intentionally discriminating against Petitioner, James Eckels, on the basis of handicap (AIDS) when it failed to consider or hire the Petitioner for positions for which he applied. (Joint Prehearing Statement filed 1/8/92)

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) referred this case for formal hearing on October 4, 1991. Shortly thereafter the case was set for

hearing as reflected above. Both parties engaged in discovery as provided in Rule 22I-6.019, F.A.C.

Disposition of Respondent's motion for partial dismissal is reflected in an order entered on January 6, 1992.

At the formal hearing, Petitioner testified in his own behalf and presented the following additional witnesses: Mr. Don R. Caylor, Manager of Employee Relations with Respondent's Government Aerospace Systems Division (GASD); Mr.

Charles J. Herbert, General Manager of GASD; Mr. Arthur F. Kramer, Jr., Employment Manager at GASD; Mr. P. J. Rossana, Director of Business Development for GASD; Mr. William M. Braselton, Jr., Vice President of Business Development for GASD; and Ms. Selwyn Edwards, Director of Human Resources for GASD.

Respondent presented the following witnesses at the hearing: Ms. Selwyn Edwards; Mr. Arthur F. Kramer, Jr.; Mr. William M. Braselton, Jr.; Mr. P. J. Rossana; and Mr. James Eckels.

Petitioner's exhibits #1-3, #5-8, and #10 were admitted into evidence: Ex.

1, Petitioner's letter to Don Caylor, dated December 8, 1988; Ex. 2, Memo to file from Don Caylor, dated January 17, 1989; Ex. 3, Petitioner's Application for Professional Employment to GASD, dated February 12, 1990; Ex. 5, Composite exhibit of three Employee Requisitions; Ex. 6, Petitioner's interview schedule, dated June 6, 1984; Ex. 7, Page 4, paragraph 3, Florida Commission on Human Relations Investigative Report, dated July 29, 1991; Ex. 8, Business card; Ex. 10, Memo from Petitioner to P. J. Rossana re: trip report to Eglin AFB, dated September 21, 1988. Exhibit #4 was withdrawn, and Exhibit #9 was excluded as irrelevant.

Respondent introduced 15 exhibits, all of which were admitted into evidence: Ex. 1, "Harris Facts" brochure; Ex. 2, Petitioner's resume; Ex. 3, Art Kramer's letter to Petitioner, dated February 20, 1990; Ex. 4, Employee Requisition re: C3I position filled by Ward Shaklee [same as P Ex. 5 p. 1]; Ex. 5, Resume of Michael Harris; Ex. 6, Resume of Bob Burdoin; Ex. 7, Resume of Ward Shaklee; Ex. 8, P. J. Rossana's Summary of Petitioner's resume [see R Ex. 2]; Ex. 9, GASD Business Development Organizational Chart of 10/88; Ex. 10, "WINGS" brochure; Ex. 11, Social Security Notice of Award, dated May 5, 1990; Ex. 12, Decision of Administrative Law Judge re: Petitioner's claim for "Period of Disability and Disability Benefits", dated March 27, 1990; Ex. 13, Social Security Notice of Favorable Decision, dated March 27, 1990; Ex. 14, Harris Policy Bulletin P-9 re: Personnel Records; Ex. 15, Resume of C. W. McElwee.

It was agreed at the hearing that briefs and/or memoranda would be submitted within twenty (20) days of the filing of the transcript with the Division of Administrative Hearings. The transcript was filed on February 12, 1992, and both parties submitted timely recommended orders. Petitioner's "proposed findings of fact" consist of argument and comments on the credibility of witnesses. The exhibits attached to the submittal were not placed in evidence in the hearing and are disregarded. Respondent's proposed findings of fact and conclusions of law are substantially adopted herein.

FINDINGS OF FACT

1. Petitioner testified, and Respondent does not contest, that the Petitioner was first diagnosed as having the human immunodeficiency virus (HIV) infection in 1986 and was first diagnosed as having acquired immune deficiency syndrome (AIDS) in 1987.

2. Petitioner became employed by the Respondent, Harris Corporation (Respondent or Harris), in 1984 specifically for the business development function of the VHSIC (very high speed integrated circuits) Operation of its Government Aerospace Systems Division (GASD). GASD is a division of Respondent's Electronic Systems Sector. The purpose of the business development function for the VHSIC operation was to manage the insertion of VHSIC chips and technology into systems level programs. The Petitioner's performance in the VHSIC operation was considered adequate. The VHSIC operation was disbanded when its sponsor, the federal government began to withdraw its support. Petitioner was transferred to GASD's Aircraft Systems Group of business development as a Manager, where he spent his last five months with Respondent.

   
   

3. On December 2, 1988, Petitioner was laid off by the Respondent as part of the most extensive reduction-in-force in GASD's history, involving approximately 75 employees division-wide, including a number of key technical personnel.

   
   

4. The reduction in force was necessitated by a severe downturn in GASD's business as a result of, among other things, the residual effects of the termination of four major government contracts in late 1987 and the early part of 1988. In the business development area, cuts were made in discretionary expenses, such as advertising, trade shows, etc., but these were still insufficient to meet cost reduction goals in business development. As a result, it was determined that laying off two people from business development would be necessary.

   
   

5. Petitioner was selected for layoff because the special VHSIC operation for which he had been specifically hired had been closed and his subsequent assignments were not in the prime market areas which had been determined to be the focus of GASD's near-term business development efforts. The remaining employees in business development were already familiar with, and working with those market areas. Another business development employee was also selected for layoff, but voluntarily left before the reduction-in-force was implemented. Petitioner did not voluntarily leave and sent a letter to Mr. Don Caylor, GASD Manager of Employee Relations expressing his interest in staying at Harris.

   
   

6. On January 17, 1989, Petitioner went to GASD and spoke with Mr. Caylor. At that time, the Petitioner requested and was provided an application for long- term disability benefits. There was no discussion of the basis, only that Petitioner's physician had recommended it.

   
   

7. Petitioner thereafter submitted the application for long-term disability benefits.

   
   

8. Mr. Caylor first became aware of Petitioner's basis for disability claim in February or March 1989. He acquired this knowledge when he was shown the long-term disability application which the Petitioner had filed.

   
   

9. Mr. Caylor discussed the HIV-positive status of Petitioner only with Ms. Selwyn Edwards, Director of Human Resources. Respondent's long-term disability program is managed by a third party, Equicor. However, Mr. Caylor was responsible for the benefits function within GASD's human resources group. Ms. Edwards, who has held the position of GASD's Director of Human Resources since 1981, is the most senior Human Resources officer in GASD.

10. Neither Ms. Edwards nor Mr. Caylor discussed Petitioner's condition with Mr. Arthur Kramer, GASD's Employment Manager.

    
    

11. The fifteen or so employees in the GASD human relations function have specific, segregated responsibilities. Mr. Caylor has no involvement with the employment process at GASD in general and had no involvement with the Petitioner's February 1990 application in particular. His responsibilities were management of employee relations, addressing conflicts between management and employees, communications, training and development, and the benefits function.

    
    

12. The employment process is the responsibility of Mr. Art Kramer, the Employment Manager. Mr. Kramer has been employed by Respondent for over 13 years, has been with GASD for over 12 years, and has held the Employment Manager position since some time after 1984. His responsibilities were to seek applicants to fill GASD's needs, conduct preliminary screening of applicants, and manage the hiring process.

    
    

13. On the advice of attorneys that Petitioner had consulted, he submitted an "Application for Professional Employment" to GASD on February 12, 1990. The Application requested consideration for "defense marketing" positions.

    
    

14. On February 12, 1990, GASD had two business development openings: one for a Business Development Manager III position for C3I programs (C3I position); and the other for a Business Development Manager IV position for the DOD/Special Systems business area (DOD/Special Systems position).

    
    

15. GASD does not give laid-off exempt employees, such as Mr. Eckels, any preferential recall rights or preferential consideration for new openings.

    
    

16. GASD receives approximately 200 unsolicited applications and resumes per week. As a result, a preliminary screening procedure has been established to immediately eliminate applicants who do not possess qualifications for available openings. Most receive letters indicating GASD does not have a position suited to the person's background. Mr. Kramer, as Employment Manager for GASD, has the responsibility of conducting this preliminary screening of applications.

    
    

17. Mr. Kramer examined Petitioner's resume and application, and determined that he was not qualified for either of the then-current openings. He notified Petitioner of that determination by letter on February 20, 1990.

    
    

18. The sole focus of the C3I program was in avionics, as data links for airborne platforms. Up until the last five months of the Petitioner's employment with GASD, his sole experience with Harris had been in the new technology venture of VHSIC. Mr. Kramer knew this, and that it did not include the airborne experience being sought. Further, the Petitioner's resume reflected that Petitioner's most (and most extensive) recent pre-GASD background in research and development centered on such things as equipment for rock excavation, turbine engines, ecological studies, propulsion systems for ships. Mr. Kramer determined that the Petitioner did not have the background required for the position.

    
    

19. A number of other candidates whose resumes reflected substantial avionics experience were also not hired for the C3I position.

    
    

20. When Petitioner's February 12, 1990 application was submitted, Respondent had already offered the C3I position to a Mr. Ward Shaklee and was in

    final negotiations with him. A final offer letter had been made in early February 1990. Shaklee accepted the offer and was hired to fill that position.

    
    

21. In the C3I business area, GASD specifically planned to exploit its investment in the data links programs for advanced fighters. Mr. Shaklee had been employed for the previous three and one-half years by the Collins Government Avionics Division of Rockwell International. Collins was in the data links business, as a direct competitor of GASD. This meant Mr. Shaklee had the experience and competitor knowledge being sought by GASD. Further, Mr. Shaklee's entire post-military career had been in marketing the type of avionic programs the C3I position was targeting. Finally, he had ten years military experience in the Air Force tactical air command, giving him the firsthand customer knowledge the C3I position required. Thus, Mr. Shaklee's credentials were deemed to be the best match to the Respondent's needs in the C3I business area.

    
    

22. The second opening at the time of the Petitioner's application -- the DOD/Special Systems position -- called for "special systems" programs experience, special accesses for these type programs and specialized contacts. As admitted by the Petitioner, these systems are highly secured and classified, involving a community in which the people know one another.

    
    

23. Neither the Petitioner's resume nor his application reflect any special systems experience, and the Petitioner admits this. Mr. Kramer made the determination that the Petitioner was not qualified for this opening.

    
    

24. The DOD/Special Systems position was filled with a Mr. Chuck McElwee, who was transferred from within GASD. Mr. McElwee had been with Respondent for

    14 years and was, most recently, on assignment in the same product line, and had the specialized contacts and special access required for the position.

    
    

25. Mr. Kramer was the only person involved in the decision not to further consider Eckels' application for either of C3I or DOD/Special Systems positions.

    
    

26. Mr. Kramer did not learn that Petitioner had AIDS until some time after Petitioner filed his Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The FCHR charge is dated February 21, 1990.

    
    

    Petitioner admits that he scrupulously safeguarded the fact of his disability while at Harris, including purchasing AZT medication and other treatment on his own, rather than through the employers' health benefits.

    
    

    Because of this, and because of the organizational detachment of Mr. Kramer's function from that of Caylor, Mr. Kramer did not know Petitioner had AIDS when he screened his applications and determined Petitioner unqualified.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1),

    F.S. (1991)

    
    

    Unlawful Handicap Discrimination

    
    

28. The Florida Human Rights Act, Section 760.01-760.10, F.S. (1991), provides that it is an unlawful employment practice for an employer to discriminate in hiring on the basis of handicap. Section 760.10(1)(a), F.S.

    (1991). Under Section 760.50(2), F.S. (1991), a person who has AIDS "shall have every protection made available to handicapped persons".

    
    

    The Burden of Proof

    
    

29. The Florida Human Rights Act is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., School Board of Leon County v. Hargis, 400 So.2d 103, 108 N.2 (Fla. 1st DCA 1981); Maher v. Beacon- Donegon Nursing Home, 8 FALR 1416, 1425 (FCHR 1985). Therefore, precedent construing similar provisions of Title VII should be accorded great deference. Simmons v. Eastern Airlines, Inc., 10 FALR 6244, 6250 (FCHR 1988).

    
    

30. Where a plaintiff alleges unlawful employment discrimination, the plaintiff has the ultimate burden of proving by the preponderance of the evidence that the defendant intentionally discriminated against the plaintiff. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Ins. Co.,

    12 FALR 2034, 2037 (FCHR 1989); Martin v. Monsanto Co., 10 FALR 3886, 3896 (FCHR 1988). Since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981). The Florida Commission on Human Relations (FCHR) has adopted this analytical model in analyzing cases under the Florida Human Rights Act. School Bd. of Leon County v. Weaver, 556 So.2d 443, 444 n.2 (Fla. 1st DCA 1990); Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985).

    
    

31. Under McDonnell Douglas, the plaintiff initially bears the burden of proving a prima facie case of discrimination. Where the plaintiff alleges failure to hire, he must prove that: (1) he belongs to a protected group; (2) he was otherwise qualified for the position for which the employer was seeking applicants; (3) he was rejected despite his qualifications; and (4) after rejecting the plaintiff, the position remained open, and the employer continued to seek applicants with the plaintiff's qualifications. McDonnell Douglas, 411

    U.S. at 802. See also Bryant v. Florida Dep't of Community Affairs, 12 FALR 4461, 4469 (FCHR 1989) (applying McDonnell Douglas framework in a race discrimination case).

    
    

32. By proving a prima facie case, however, the plaintiff has not established an ultimate finding of intentional discrimination.

    
    

    1. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Bryant, 12 FALR at 4471 (citing Burdine, 450 U.S. at 254). "It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations." Irby v. Allstate Ins. Co., 12 FALR 2034, 2037 (FCHR 1989). This merely leads to consideration of the second step of the analytical model.

    2. This second step is explained by the Supreme Court in Burdine: The burden that shifts to the defendant,

    therefore, is to rebut the presumption of

    discrimination by producing evidence that the plaintiff was rejected, or someone else was

    preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue

    of fact as to whether it discriminated against the plaintiff.

    
    

    450 U.S. at 254 (citations and footnotes omitted)

    
    

33. Thus, where the plaintiff meets his burden of establishing a prima facie case of discriminatory failure to hire, the defendant must then "articulate some legitimate, nondiscriminatory reason for the challenged employment decision." Irby, 12 FALR at 2037. As the Supreme Court in Burdine emphasized, the defendant does not have to prove any of those reasons. Burdine,

    450 U.S. at 254. Further, the burden on the employer "is characterized as 'exceedingly light'." Irby, 12 FALR at 2037, citing Perryman v. Johnson Prod. Co., 698 F.2d 1138, 1142 (11th cir. 1983).

    
    

34. If the defendant succeeds in articulating one or more nondiscriminatory reasons for the failure to hire, the analytical model requires consideration of a third step. At this step, the plaintiff has an opportunity to prove that the defendant's reasons are not worthy of credence -- i.e., that the proffered reasons were simply a pretext to disguise the defendant's discriminatory motives. Burdine, 450 U.S. at 257; Anderson v. Lykes Pasco Packing Co., 503 S.2d 1269, 1271 (Fla. 2d DCA 1986).

    
    

35. It is not the defendant, but the plaintiff who has the "ultimate burden of establishing by a preponderance of the evidence that a discriminatory intent motivated the employer's action." Perryman, 698 F.2d at 1142. The ultimate burden "of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Irby, 12 FALR at 2037 (emphasis in original) (citing Burdine, 450

    U.S. at 253).

    
    

    Prima Facie Case

    
    

36. Petitioner had AIDS at the time of his application for employment with the respondent in February of 1990.

    
    

37. Having AIDS, however, is not by itself sufficient to state a claim for handicap discrimination.

    
    

38. In 1988 the Florida Legislature enacted the Omnibus AIDS Act, Section 760.50, F.S., providing, in pertinent part:

    
    

    760.50 Discrimination on the basis of acquired immune deficiency syndrome, acquired immune deficiency syndrome related complex, and human immunodeficiency virus prohibited.--

    1. The Legislature finds and declares that persons infected or believed to be infected with human immunodeficiency virus have suffered and will continue to suffer irrational and scientifically unfounded discrimination. The Legislature further finds and declares that

       society itself is harmed by this discrimination, as otherwise able-bodied persons are deprived

       of the means of supporting themselves, providing for their own health care, housing themselves, and participating in the opportunities otherwise available to them in society. The Legislature further finds and declares that remedies are needed to correct these problems.

    2. Any person with or perceived as having acquired immune deficiency syndrome, acquired immune deficiency syndrome related complex, or human immunodeficiency virus shall have

    every protection made available to handicapped persons.

    * * *

    (b) No person may fail or refuse to hire or discharge any individual, segregate or classify any individual in any way which would deprive

    or tend to deprive that individual of employment opportunities or adversely affect his status

    as an employee, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment

    on the basis of knowledge or belief that the individual has taken a human immunodeficiency virus test or the results or perceived results of such test unless the absence of human immunodeficiency virus infection is a bona fide occupational qualification of the job in question.

    * * *

    (emphasis provided)

    
    

39. The language regarding perception of AIDS was added in 1989 with the recognition that discrimination based on a mere perception of infection, however unfounded, is as pernicious as discrimination based on the disease itself. See, Waters, AIDS and the Perception of AIDS as Handicaps Under Florida Law, 17 Fla. St. U. L. Rev. 443, for a helpful background and legislative history of Section 760.50, F.S.

    
    

40. If mere knowledge and perception can give rise to unlawful discrimination, it follows that lack of knowledge or perception cannot. Simply put, if those involved in the decision to not hire Petitioner had no knowledge or perception of his handicap, the decision could not have been so motivated.

    
    

41. Petitioner has shown that Ms. Selwyn Edwards and Mr. Don Caylor were aware of his disability prior to his February 1990 application. However, Petitioner failed to come forward with any evidence to establish that Mr. Kramer, the GASD Employment Manager who alone made the decision as to Petitioner's application for employment, had knowledge of Petitioner's AIDS. To the contrary, uncontradicted testimony of Mr. Kramer was that he was not aware of the Petitioner's disability until after the Petitioner filed a charge with the FCHR -- i.e., some time after February 21, 1990. This is consistent with the allocation of human resources responsibilities at GASD. Mr. Kramer simply had no reason to know that the Petitioner had AIDS at the time he determined that Petitioner did not meet the prerequisites for the existing openings.

42. In the absence of evidence which shows that the decision not to hire the Petitioner was made based on knowledge of his handicap, Petitioner has failed to state a prima facie case of discrimination based on handicap.

    
    

    Nondiscriminatory Reason for Nonselection

    
    

43. Even had Petitioner established that Respondent's manager, who made the hiring decision, was aware of his handicap, Respondent has shown that Petitioner was not selected for the two positions that were open at the time of his application in 1990 for legitimate, nondiscriminatory reasons. See Southeastern Community College v. Davis, 442 U.S. 397, 403-404 (1979) (able to meet all requirements despite handicap).

    
    

44. The Petitioner was not perceived by Mr. Kramer to have the particular qualifications and experience the openings required. To the extent the Petitioner may have, in fact, had those qualifications and that experience, they were not reflected on the resume and application that Mr. Kramer used to screen out the Petitioner. Further, those purported qualifications and that experience were not, in fact, known to Mr. Kramer. Mr. Kramer acted on what he had every reason to believe to be the qualifications and experience of the Petitioner.

    
    

45. In addition, for one of the openings -- the C3I position -- other candidates, whose resumes clearly reflected the requisite qualifications and experience, were rejected in favor of another, more qualified candidate; and an offer had already been made to the successful candidate. As to the other opening -- the DOD/Special Systems position -- the successful candidate was an internal transferee who was already working with the special projects and proprietary customers, conditions which the position specifically required.

    
    

    Pretext

    
    

46. To overcome the legitimate, nondiscriminatory reasons articulated by the Respondent, the Petitioner must prove that those reasons were merely a pretext to disguise the Respondent's true, discriminatory motive. E.G., Burdine, 450 U.S. at 257.

    
    

47. Petitioner's claim of pretext is based on his theory that Harris somehow had to have known that he had AIDS prior to this layoff, that no other rational explanation could be found for the decision to release a productive high-level employee. That knowledge, he posits, influenced the company's refusal to hire him back.

    
    

48. The rational explanation provided by Harris for the layoff, the business down-turn, was credible and unrebutted. Petitioner failed to prove that the reasons for rejecting his application for rehire were pretextual.

RECOMMENDATION

Based on the foregoing, it is hereby, recommended that the Florida Commission on Human Relations enter its Final Order dismissing the Petition for Relief.

RECOMMENDED this 16th day of March, 1992, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1992.

COPIES FURNISHED:

James R. Eckels

4200 N. Ocean Dr., Ste. A1206

Singer Island, FL 33404

W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius

5300 Southeast Financial Center

200 S. Biscayne Blvd. Miami, FL 33131-2339

Anne Barrett-Davis Senior Legal Assistant Harris Corporation 1025 West NASA Blvd.

Melbourne, FL 32919

Dana Baird, General Counsel Commission on Human Relations Bldg. F, Ste. 240

325 John Knox Rd. Tallahassee, FL 32303-4113

Margaret Jones, Clerk Commission on Human Relations Bldg. F, Ste. 240

325 John Knox Rd. Tallahassee, FL 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006397

Orders for Case No: 91-006397